HKSAR v. SHEUNG KUN HOO DANIEL

CAC C 56/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 56 OF 2010

(ON APPEAL FROM DCCC NO. 568 OF 2009)

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REASONS FOR JUDGMENT

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Hon Stock VP (giving the reasons for judgment of the Court):

Introduction

1.  At about 3 am on 7 November 2008, the applicant was driving his motor vehicle in Wong Nai Chung Road, Happy Valley in the southerly direction in which all traffic on that stretch of that road travels.  He was driving along the middle of the three lanes on that road when he struck a pedestrian who was walking on the road against the flow of traffic. As a result of the collision, the pedestrian named Kurt Leswing, a 21-year-old American university student, was killed.  The police arrived and the applicant was breathalysed.  The result of subsequent analysis showed that the proportion of alcohol in the applicant’s breath exceeded the prescribed limit threefold.

2.  The applicant was prosecuted in the District Court.  He faced three charges:

(1)                  causing death by dangerous driving, contrary to s. 36(1) of the Road Traffic Ordinance Cap. 374; namely, that on 7 November 2008 at Wong Nai Chung Road (South Bound) opposite to St Paul’s Primary Catholic School, he caused Mr Leswing’s death by driving his motor vehicle registration number NE 9082 on the road dangerously;

(2)                  using a defective vehicle on that day at that place contrary to regulation 28(2) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations in that both side door glasses and rear windscreen were adhered with tinted film which caused decrease of light transmission; and

(3)                  driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit of 22 micrograms of alcohol in 100 millilitres of breath, namely, 66 micrograms of alcohol in 100 millilitres of breath contrary to section 39A(1) of the Ordinance.

3.  He pleaded guilty to the second and third charges but not guilty to the first.

4.  On 1 February 2010, Judge Geiser found him guilty of the first charge, namely, causing death by dangerous driving and on 18 February 2010 he passed sentences as follows:

(1)                  in relation to Charge 1, he sentenced the applicant to 3½ years’ imprisonment and ordered him to be disqualified from holding or obtaining a driving licence (for all class of vehicles) for a period of three years;

(2)                  in relation to Charge 2, he imposed a fine of $1,000; and

(3)                  in relation to Charge 3, he imposed a fine of $4,000 and disqualified the applicant from holding or obtaining a driving licence (for all classes of vehicle) for 12 months and ordered that period of disqualification to run concurrently to the disqualification in respect of Charge 1.

5.  The applicant sought leave to appeal against conviction and sentence in relation to Charge 1.

6.  On 3 September 2010, we dismissed both applications and said that we would provide our reasons later.  This we now do.

The case in essence

7.  The prosecution case was that at the material time, the deceased, himself the worse for drink, was walking on Wong Nai Chung Road itself about 160 metres from the junction of Sports Road in the direction of Leighton Road trying to hail taxis or, perhaps, other traffic.  Traffic was light and the road dry.  A witness, Mr Siu, who was walking along the pavement on the east side of the road (the side opposite the racecourse and sports fields) in the same direction as the deceased, saw the deceased and saw such vehicles as were driving southbound along the road slow down and change course so as to avoid him.  In particular, he saw a taxi travelling along the middle of the three lanes slow down and move into the left-hand lane but also saw the path and manner of driving of the applicant’s vehicle shortly thereafter.  

8.  His evidence was that the applicant drove out of Sports Road onto Wong Nai Chung Road at “very high speed”, did not take evasive action, and crashed into the deceased who was thrown into the air and landed by a tree or bush on the racetrack side of Wong Nai Chung Road.  His evidence was also that after the accident, he spoke to the applicant, noticed the smell of alcohol on his breath and that the applicant repeatedly sought to delay the calling of the police.

9.  The prosecution case was that the applicant’s driving was self-evidently dangerous in that he was driving at high speed; and, by reason of his alcohol intake, was manifestly not fit to drive; and that a combination of these factors caused the accident which led to the death of Mr Leswing.

10.  The judge accepted the testimony of Mr Siu in its material aspects.

11.  The applicant himself did not testify but relied upon an interview or interviews he had provided to the police after the event, in which he had alleged that the deceased had suddenly run out onto the roadway or dashed into his path from one lane into the middle lane.  The judge rejected this version of events.  He held that the applicant had been driving at high speed and that due to his intoxication he was in any event in no position to drive and that a combination of those factors “made his driving utterly dangerous at the material time.”

The evidence

12.  The grounds of appeal constitute a detailed attack on the judge’s assessment of the evidence, particularly that of Mr Siu, and it is also suggested that the evidence was such that it was not open to the judge to be sure of the applicant’s guilt.  

13.  It is therefore necessary to refer to the evidence of Mr Siu in some detail and to summarise the other evidence.

(1) Mr Siu

14.  Mr Siu has been a taxi driver for about 13 years.  On 7 November 2008, he had finished his night shift at about 2:30 am, parked his vehicle in Happy Valley and, at around 2:50 am, found himself walking along the pavement of Wong Nai Chung Road towards Leighton Road.  He was stopped by the police for an identity check and then walked on.  At about 3 am, when he was just past the Amigo Restaurant, he heard someone shouting out and saw an expatriate, whom we now know to have been Mr Leswing, walking along the road itself also in the direction of Leighton Road.  It appeared to him that Mr Leswing was trying to flag down a vehicle.  Mr Siu said that “there were very few vehicles travelling on the road”.  The man was shouting and extending his arm to stop the vehicles.

15.  Mr Siu came to the junction with Broadwood Road and he saw the man move into the middle lane of Wong Nai Chung Road.  He saw six or seven vehicles travel along that road and each slow down to avoid the man.  The drivers of the vehicles also sounded their horns.  It is apparent from Mr Siu’s evidence that he was making more progress towards the direction of Leighton Road than was Mr Leswing and so found himself ahead of him.  When Mr Siu reached the safety island at the junction of Broadwood Road and Wong Nai Chung Road, he observed a vacant taxi travelling down the middle lane.  The man in the road was shouting.  Mr Siu stopped and turned his head to look and saw the taxi slow down, avoid the pedestrian and turn into the left lane, in other words the lane closest to Mr Siu.

16.  Mr Siu said that the street lamps were on and there were also lights coming from the Amigo Restaurant signboards.  There was, he said, “no problem about the lighting.”

17.  In his examination-in-chief, he said that at the time that the taxi changed from the middle lane to the left lane, there were no other vehicles in the road but that after he had seen the taxi avoid the man in the road, he saw the applicant’s vehicle turn right from Sports Road into Wong Nai Chung Road and take the middle lane.  He described the manner in which that vehicle made the turn from Sports Road into Wong Nai Chung Road as “very fast… it was travelling in a very high speed.”  He was asked to give an estimate as to the speed and he said that it was roughly 80 to 90 km per hour; and he, Mr Siu, wondered if anything would happen to the man in the road.  He therefore turned round and looked towards the Happy Valley direction, towards the man in the road, by which stage the taxi was on the left lane, having passed the man.  He then saw the applicant’s vehicle “actually ramming into the pedestrian in a high-speed” in the middle lane.  The man was tossed up in the air and was thrown to the side of the road.  He said that before the applicant’s vehicle hit the man, there was no swerving of the applicant’s vehicle; it just ran straight into the pedestrian.  He gave an estimate, by reference to features in the courtroom, as to how high the man was thrown, an estimate of at least 6 feet, considerably less than his verbal estimate before that demonstration of 20 to 40 metres.  He said also that before the vehicle crashed into the man he did not see any brake light on the applicant’s vehicle.  It was only after the crash that the brake lights came on.

18.  After the collision, the applicant alighted and ran along the road as if searching for something.  Mr Siu walked back and called out to the applicant.  The applicant ran towards him and the two of them spoke and Mr Siu could smell alcohol from the applicant.  The applicant admitted that he had been the driver of the vehicle.  Mr Siu told him that he, the applicant, had crashed into a pedestrian and that the pedestrian was lying on the side of the road, at which the applicant ran towards the direction of the deceased, who was lying on the pavement face up, his body more or less parallel to the road.  The applicant pulled the right hand of the pedestrian and Mr Siu asked him not to do that.

19.  Mr Siu gave evidence of several occasions on which he suggested to the applicant – on one occasion to the taxi driver in the applicant’s presence – that the police be called but the applicant asked that a report be not made, at least “not yet”.

20.  There had been a female passenger in the applicant’s vehicle.  She alighted from his vehicle and the applicant asked her to leave the scene.

21.  Mr Siu stayed at the scene for around 15 to 25 minutes after the accident and at some stage he saw the applicant move his car to a position in front of the taxi.

22.  In examination-in-chief, Mr Siu said that there had not been a time at which both vehicles, namely the taxi and the applicant’s vehicle, had been travelling in the middle lane at the same time.  His estimate of the speed of the taxi before the accident was around 50 km per hour.

23.  Under cross-examination, Mr Siu said that the deceased’s manner of walking had given him the impression that he might be drunk.  Significantly to the applicant’s case on this appeal, he conceded that it “could be” the case that there was a stage at which the taxi was going along the middle lane followed by the applicant’s vehicle also going along that lane.  It was put to him that there was a time when the applicant’s vehicle was “very close to the tail of the taxi just before the taxi cut into the left lane from the middle lane” but the witness said that he did not see that; he disagreed that the taxi had cut from the middle lane into the left lane just before the collision.  However, he was shown a statement which he had made to the police in March 2009, some months after the accident, in which he had said: “At that time I saw [the applicant’s vehicle] get very close to the tail of the taxi.  However, I am unable to tell how close the distance was between these two vehicles.”  When later pressed, however, on this issue he seemed to disagree that the applicant’s vehicle had been quite close behind the taxi just before the collision.  In re-examination, he said that he was not sure whether he had seen the private vehicle travelling behind the taxi or not.

24.  His attention was also drawn to a passage in that statement in which he had said “before the taxi cut into the third lane from the second right lane, I had already lost sight of the male foreigner because he was completely sheltered by the taxi”; and to a statement in which he had said that when he had seen the applicant’s vehicle reach the man in the road he saw some brake lights glowing.

(2) The skid mark

25.  A police officer was tendered for cross-examination.  He had been to the scene of the accident shortly after 4 am on the morning of 7 November 2008 and in the middle of the road he saw a skid mark 14.5 metres in length.  No evidence was led to establish the age or origin of the skid mark.  In circumstances which we shall later describe, an application by the prosecutor to call expert evidence about the skid mark was successfully opposed by counsel then acting for the applicant.

(3) Alcohol

26.  Dr Lau Fei-lung, an expert in forensic toxicology, gave evidence about the amount of alcohol in the applicant’s body at the time of the accident.  The applicant had failed the screening breath test carried out at the roadside at 4:14 am on 7 November 2008.  The breath alcohol level at that test was 81 micrograms of alcohol per 100 millilitres of breath sample.  An evidential breath test was conducted at 4:59 am, approximately 2 hours after the incident; at the police station by a qualified operator using an approved device.  That showed a concentration of 66 mircrograms of alcohol per 100 millilitres of breath, three times the limit of 22 micrograms of alcohol in 100 millilitres of breath prescribed by s. 39A(1) of the Ordinance.  66 micrograms of alcohol per 100 millitres of breath equates to a blood alcohol concentration – described by Dr Lau, as “the golden standard for assessing the effect on the mental state, the motor state and also the driving ability” of a person housing alcohol in his blood – of 151.8 milligrams per 100 millitres.

27.  Dr Lau’s evidence was that:

“While many countries still use blood alcohol concentration of 80 mg/100 ml as their legal limit, e.g. Canada, Malaysia, Singapore, United Kingdom and USA, [m]ost of the other countries like Hong Kong, Australia and most of the European countries adopt a tighter control and lowering the limit to 50 mg/100ml. This is because there is evidence to suggest impairment of driving ability already occurs at the level of 70 mg/100 ml. There is also evidence that with blood alcohol level above 60 mg/100 ml, the risk of having an accident is appreciably increased. For blood alcohol concentration above 50 mg/100 ml, the alcohol would exert an adverse effect to most people. However the effect differs with the experience of alcohol use. For the same blood alcohol concentration within 50-100 mg/100 ml, a non-tolerant individual will have mild muscular incoordination, decreased inhibition and altered judgment, while a habitual drinker may have minimal effect on his driving performance. For blood alcohol concentration within 100-200 mg/100 ml, while a non-tolerant drinker will have impaired muscular coordination, agitation, slurred speech and unsteady gait, a habitual drinker will have a milder impairment with mild muscular incoordination and loss of critical judgment."

28.  Dr Lau concluded that even if the applicant was a habitual drinker, the alcohol level in his blood was high enough to cause him mild incoordination and to affect his driving performance; and that if he was a non-tolerant drinker, he would have suffered moderate incoordination, slurred speech and unsteady gait.  In either event, his driving performance would definitely have been impaired.  The level found in the applicant was three times the legal limit.  Such a level would, in his opinion, have a significant effect on various functions of the driver and there was evidence to suggest that for that sort of level the accident risk was increased as much as 10 times.

(4) Other witnesses

29.  A number of witness statements were read and admitted into evidence pursuant to section 65B of the Criminal Procedure Ordinance Cap. 221, two of which were referred to by the judge.  They were the statements of two males who were standing at the window of a flat overlooking Wong Nai Chung Road at about 2:50 am on 7 November 2008.  They saw the man in the road who, to them, seemed to be drunk, walking along the middle lane towards Leighton Road with his arms outstretched.  One of them shouted to him to get off the road but he apparently did not hear.  A few seconds later each looked out and saw a taxi stopping in the left lane and a private car stopping in front of the taxi.

(5) The applicant’s statements

30.  The applicant was arrested at 4:05 am on 7 November 2008.  He said that: “it was he who suddenly ran out into the roadway and dashed towards my car.”  After the accident, his mind went completely blank and he was at a loss what to do.  Someone handed him an object which turned out to be the rearview mirror.  He drove his vehicle to near to a tram stop where he parked and then called his wife.  We note that he did not then tell the police that he had had a passenger in the car.

31.  A full interview was conducted with the applicant at a police station on 13 November 2008.  He again said that “suddenly a person dashed towards my car I could not budge in time but hit him.”  He thought he had been driving in the middle lane at that moment but was not sure; he did not remember the speed of his car but he did remember that there was a taxi ahead of him in his lane.  He did not remember the distance between him and the taxi but remembered that the taxi suddenly veered into the left-hand lane whilst he, the applicant, drove straight on.  After the impact he was, he said, seriously confused.  He was asked whether when he saw the deceased dash out, he tried to slow down the car and he replied that he did not apply the brake because he had no time to do so.  He said that when he saw the deceased on the pavement on the Jockey Club side of the road, he was very afraid and did not dare go to where the deceased was.  It was put to him that, to the contrary, he had approached the deceased when the deceased was lying on the pavement and he answered:

“Because I was still a bit drunk at that time. Since I had drunk wine, I could not be certain whether I had gone to the pavement…. My memory was very dim.”

32.  It was an admitted fact that the police were not called until 3.44 am, which was about three quarters of an hour after the applicant had struck down the pedestrian.  The applicant had the means to make such a call.  He had a mobile telephone with him at the time; indeed, he used it to call others but he did not call the police.  The applicant told the police that his wife called the police.  He was asked specifically whether, apart from the taxi driver, there was any other person at the scene at the time of the accident and he said that he had no idea.  The police pressed him as to this, asking whether after the accident had occurred only he and the driver of the taxi were at the scene and he replied: “It is beyond my ability to recall it.”  Police then put to him that according to their enquiries there had been a female passenger in his car at the material time and he said that she was someone called Lucy, a friend of a friend, who, with others, had been with him at a pub in Tsimshatsui.  He said that at that pub he had consumed three or four glasses of red wine.  He was asked why, straight after the accident, he had not reported the matter to the police and he said that that was because he was frightened and confused and had in vain tried to call his solicitor.  He said: “It was so late at night and I had to wait for my father and mother who were on the way to see.”  It was put to him that he had stopped a pedestrian from calling the police but this he denied.

33.  Another interview was conducted in December 2008, but this carries the matter no further.

The Reasons for Verdict

34.  The Reasons for Verdict are a model of clarity.  The judge has accurately summarised the evidence adduced before him.

35.  The judge noted the terms of ss. 36(4), (6) and (7) of the Road Traffic Ordinance, Cap. 374:

“(4) A person is to be regarded as driving dangerously within the meaning of subsection (1) if-

(a) the way he drives falls far below what would be expected of a competent and careful driver; and

(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.

…

(6) For the purposes of subsections (4) and (5), ‘dangerous’ refers to danger either of injury to any person or of serious damage to property.

(7) For the purposes of subsections (4) and (5), in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had to all the circumstances of the case including-

(a) the nature, condition and use of the road concerned at the material time;

(b) the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned material time; and

(c)   the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused.”

36.  The judge said that he regarded Mr Siu as an excellent witness and accepted his evidence that the volume of traffic was very light, that the street lamps were on and that the lighting conditions posed no problem.  He found compelling his evidence relating to the speed of the applicant’s vehicle, namely a very high speed estimated to be between 80 to 90 km per hour.  He took into account the fact that Mr Siu was a professional driver and had been so for some years past.

37.  The judge rejected the applicant’s suggestion in his answer to caution and in his recorded interview that the deceased suddenly ran out onto the roadway or dashed towards the applicant’s car from the first lane into the middle lane.  This was a suggestion “simply not borne out by the evidence at all.  The overwhelming evidence from [Mr Siu and those whose (unchallenged) statements had been included in the evidence] is that the deceased was walking in the middle lane prior to any collision.  Indeed, the taxi that was also in the middle lane, and in front of the defendant’s vehicle, slowed down and veered to the left in order to avoid the deceased.”

38.  On the question of alcohol, the judge accepted the evidence of Dr Lau that the quantity of alcohol in the applicant’s body was such as to have a significant effect on his driving ability and the judge found that the applicant “was clearly in no position to drive due to his intoxication.  He was three times over the legal limit and himself admitted in his cautioned interview that after the collision he was still a bit drunk.”

39.  In passages which have taken on some significance as far as counsel for the applicant is concerned, the judge said this:

“I am unable to say, on the evidence, quite how far behind the taxi the defendant’s vehicle was immediately prior to the collision, but I find that little turns on this. If the defendant’s vehicle was right behind the taxi, then he was tailgating at speed which, together with his intoxication, was quite obviously highly dangerous. If he was further away from the taxi but catching up, then he ought to have seen the expatriate who, after all, was in the middle of the road waving his arms and must have been a quite obvious hazard which other drivers were quite easily able to avoid.

The fact that the defendant was unable to avoid the deceased is testament to the fact that he was driving at speed whilst his driving ability was impaired through an excessive intake of alcohol, posing a serious danger to himself and other road-users.”

40.  In conclusion, the judge said as follows:

“Finally, I wish to respond to a submission put forward by defence counsel. This relates to the point that in some way, the deceased was responsible for the accident by being in the middle of the road at the time of the collision. Whilst it can rightly be said that the deceased should most certainly not have been standing where he was, this does not mean that the defendant was not driving in a manner which was obviously dangerous. But lest there be any doubt, it was the combination of excessive speed and intoxication on the part of the defendant that made his driving utterly dangerous at the material time.”

41.  Accordingly, the judge convicted the applicant of the offence of causing death by dangerous driving.

The submissions and the Court’s analysis

42.  The oral submissions advanced upon the hearing of the application were considerably less diffuse than the written grounds of appeal, though Mr Grossman SC, for the applicant, formally adopted the full written grounds, which was not a helpful step since some of the written grounds were palpably untenable.  For example the grounds of appeal – or at least some of them – appear to proceed upon a premise somehow drawn from the sentence imposed upon the applicant for the offence of causing death by dangerous driving that “in deciding on 3 years as the appropriate starting point … the learned District Judge must have accepted the second alternative scenario in his reasons for verdict as a factual basis justifying a more severe sentence.”  We do not understand the submission or the basis upon which it is suggested that the one scenario merited a more severe sentence than another.  Neither the judge’s reasoning nor common sense so dictates.

43.  There is another similarly weak suggestion, not repeated in oral argument but adopted.  It is that “the learned District Judge erred in convicting the applicant on alternative factual bases justifying a conclusion of dangerous driving, having accepted that on the evidence he could not find how far behind the taxi the applicant’s car was immediately prior to the collision.  If the… judge was not satisfied to the requisite degree of certainty in either scenario, he should have acquitted the applicant.”  The fallacy in the submission is obvious.  The judge was in a position to make several findings of fact: that the applicant had been driving at high speed, that he was the worse for drink at the time he was so driving, and that on any view of the evidence the accident must have happened in one of two circumstances.  If the judge was correct in concluding that either circumstance, taken together with the other facts he found, led him to be sure that the applicant had been driving dangerously, and causation was proved, he was duty-bound to convict.

44.  Mr Grossman recognized that, given the uncontested evidence of excess alcohol, the key to the case was the question of speed.  In this regard, he argued, the judge’s reliance on the evidence of Mr Siu was unsafe, that Mr Siu could not be said to have been an ‘excellent witness’ who gave ‘compelling’ evidence, that the judge has not properly evaluated the evidence or demonstrated how he, the judge, resolved conflicts in Mr Siu’s testimony.  He further contended that the judge failed to recognize the import of the short time in which applicant’s vehicle was within the witness’ view before the accident or of the fact that there came a time when Mr Siu’s view of the man in the road was obscured by the taxi.

45.  In relation to Mr Siu’s estimate of speed, what Mr Grossman emphasised was that part of the witness’ testimony in which he said that when in his March 2009 statement to the police he estimated the speed to be 80 to 90 km per hour, that was “only giving an estimated speed to the police on my guess” based on “just a feeling.” Mr Grossman correctly reminded the Court that estimates of speed are notoriously difficult to make and must be approached with the utmost wariness, a wariness that is not evident from the Reasons.  The fallibility of the estimate must, he further contended, be augmented by the demonstrated fallibility of the witness in relation to other matters, namely, the contradiction or uncertainty as to where in relation to each other the two vehicles (the taxi and the applicant’s) were when the witness first saw the applicant’s vehicle and the obvious error in his estimate, in metre terms, of the height to which the deceased was thrown upon impact.  How in all the circumstances, asked Mr Grossman rhetorically, could the judge properly categorise the witness as excellent or his evidence as compelling; though Mr Grossman was at pains to point out that the honesty of the witness was not in question, merely the degree to which his evidence could enable a court to be sure of the applicant’s guilt of the offence charged.

46.  Whether the acceptance by a trial judge of one key aspect of a witness’ testimony is rendered unsafe by his failure to refer to another but inconsistent or unreliable piece of evidence is a case and fact specific issue. Sometimes it will matter; sometimes it will not.  In this case, there was one key aspect of Mr Siu’s evidence which remained consistent from the time he first gave a statement to the police to the end of his evidence, namely, that whatever the precise speed at which the applicant had been travelling, it was a very fast speed.  Indeed it was that very fact that prompted him to look back, out of concern for the welfare of the man in the road.  That someone is travelling obviously too fast is the sort of fact, if it occurs, that is liable to stick in the mind of any witness to a road incident, let alone to a professional and experienced driver like Mr Siu.  The judge knew that the witness had differed as to where at a given time each vehicle had been and he specifically acknowledged that fact; but the contradiction, if that is what it was, as to where each vehicle was at a given time is not of a nature that renders improbable or unreliable a consistent account from an experienced driver that one of those vehicles was travelling at a very high speed; we think that to be so obvious as to render it unnecessary for the judge to have said so.  Furthermore, for reasons which the judge specifically explained, it was not necessary for the judge to resolve that contradiction, if contradiction it was.  Nor does the fact that a person, not used to estimating heights in terms of metres, provides a clearly wrong figure when tested by his physical demonstration, render that same person who is a seasoned driver unreliable when he says someone was travelling very fast or when he gives what he himself – an experienced driver – admits to be but an estimate of speed.  In any event, what mattered was not the precise speed, whether 80 or 90 km per hour, but the evidence that the speed was very high and, in this regard, it is to be noted that he estimated the speed of the taxi to have been in the region of 50 km per hour: in other words, whatever the precise figures, the applicant was travelling considerably faster than the taxi.

47.  Much was made by Mr Grossman of the judge’s description of Mr Siu as “an excellent witness who gave detailed evidence as to what he saw in the early hours of that fateful morning.”  That description, said Mr Grossman, sat ill as a description of a witness who was shown to be unreliable and in any event the evidence he gave, was not, it was suggested, detailed.  Furthermore, how could it be said that his evidence as to the speed at which the applicant’s vehicle came out of Sports Road was compelling?

48.  The fact that some aspect of a witness’ evidence is shown to be unreliable may or may not render it acceptable for a court nonetheless to categorise him as an excellent witness whose evidence on a key aspect of the case is compelling.  The witness did give detailed evidence.  He gave prolonged evidence about coming off duty, walking in the direction he walked, being stopped by police, seeing the man walking in the middle of Wong Nai Chung Road, the amount of the traffic, visibility, the number of vehicles – close to him, passing him – each able to slow down and avoid the man and about a sudden turn of events that was entirely different from what had gone before, namely, the sudden appearance of the applicant’s vehicle driving at a very high speed.  One can well understand a judge describing evidence of this kind – notwithstanding errors such as height or where precisely in a fast-moving situation the applicant’s vehicle was when he first saw it – as compelling and the witness as excellent.

49.  Though hardly conclusive of the issue of speed, it is noticeable that whilst a great deal of attention was paid in cross-examination of this witness by counsel then representing the applicant, to the witness’ estimate of speed in terms of kilometres per hour, it was never suggested to him that his assertion of a very high speed, put repeatedly by the witness in those general terms both in his statements to the police and in court, was faulty.  Nor was it ever suggested to the witness, as it has been suggested to us in Court, that perhaps the witness assumed that the applicant was driving at a very high speed because what the applicant was driving was a sports-like vehicle which made a sports-car noise. 

50.  Mr Grossman criticised as illogical the judge’s statement that “if [the applicant] was further away from the taxi but catching him up, then he ought to have seen the expatriate who, after all was in the middle of the road waving his arms and must have been a quite obvious hazard which other drivers were quite easily able to avoid.”  Mr Grossman contended that this was illogical because there was no evidence that the other vehicles which slowed down and managed to avoid the man in the road were “shielded”, to use Mr Grossman’s word, by a vehicle in front.  The point which, self-evidently, the judge was, in our view, making was that in the light traffic conditions which prevailed and given the adequacy of lighting, there was no basis, other than the manner of his own driving, upon which to conclude that the applicant was somehow forced into a position whereby he could not, even if driving at a proper speed and without intoxication, see the deceased. 

51.  A suggestion was made in the grounds of appeal that in concluding that the applicant could have avoided colliding with the deceased as had other drivers, the judge “did not take into account that [Mr Siu] had testified that when he had walked past Broadwood Road, some 60 metres away, and looking at the collision, the taxi had blocked his view completely and that the deceased was sheltered entirely from view by the taxi before the taxi moved to the left, despite the distance and [Mr Siu’s] up right perspective.  This meant that the applicant then following behind the taxi, irrespective of how far behind his car, could not have seen the deceased prior to the taxi moving to the left.”

52.  The written submissions in support of this ground went on to say that since the applicant was at the time that Mr Siu lost sight of the deceased, directly behind the taxi, “it was a matter of overwhelming probability that [the applicant’s] view of the deceased could not have been better than that of [Mr Siu] who was standing and further behind the taxi.”  A finding as to exactly what the deceased had been doing immediately prior to the accident was therefore also impossible.  

53.  This line of attack depends for any validity on the statement made by Mr Siu in which he had said that before the taxi cut into the left lane, he had lost sight of the male and in which he had suggested that he had seen the two vehicles travelling in Wong Nai Chung Road at the same time.  As is correctly pointed out by Mr Wong for the respondent, this goes against the thrust of his evidence-in-chief and later in cross-examination that he saw the taxi veer clear of the deceased before the arrival of the applicant’s vehicle from Sports Road.  But be that as it may, insofar as there is contradictory evidence, the version more favourable to the applicant is the one upon which we must proceed.  The problem, however, for this line of argument is several-fold:

(1)                  the statement upon which the applicant would now place such emphasis was one in which the witness had said that he had seen the applicant’s car “get very close to the tail of the taxi.”  If that be correct, it is clear that by reason of that fact alone the applicant was driving dangerously;

(2)                  it does not get over the highly significant evidence of the witness that the applicant’s vehicle had been travelling at very high speed;

(3)                  it does not get over the highly significant evidence that the applicant was driving when he was the worse for drink;

(4)                  it does not get over the highly significant evidence that all other vehicles in the road which had been driving in the direction of the man who was walking on the road avoided him; and

(5)                  there was no obligation upon Mr Siu, a pedestrian, to walk in such a way as to make sure that he had a clear view of everything in the road.  The applicant, on the other hand, was driving on the road, in a position quite different from that in which Mr Siu was placed and bearing an obligation to travel in such a way and at such a speed as to be able to do what all other vehicles had managed to do, namely, to avoid the sufficiently-lit obstacle in the road.

54.  In his oral presentation, Mr Grossman added to this suggestion that the judge was guilty of illogicality when saying that if the applicant was not tailgating but was further behind the taxi he ought to have seen the man in the road.  We see no illogicality.

55.  Next there was a complaint that the judge failed to address the effect of the skid mark evidence.  The suggested relevance of the skid mark evidence, to which we have earlier referred, is, according to the grounds of appeal, that:

“Applying the Road Users’ Code, the shortest braking distance for a vehicle travelling at 40kph is 10 metres; for a vehicle travelling at 60kph is 20 metres; as such, 14.5 metres of braking distance translates to a vehicular speed of just below 50kph.”

56.  Therefore, the argument went on, the judge failed to consider “the following reasonable implications and inferences:

(1)                  The skid mark was produced by the braking of the applicant’s car immediately following the collision;

(2)                  As such, irrespective of [Siu’s] estimation, the applicant’s car was travelling at just below 50 kph immediately following the collision;

(3)                  thus, even if the applicant had at any point been driving at a higher speed, he had slowed down in a skid-mark-free manner to within the road speed limit before the accident.”

57.  We note that the proposition was put on the hypothesis that the braking occurred only after the collision and not before: this is no doubt a result of the fact that in his interview the applicant had said that he had not braked at all before he hit the deceased, because there had not been time to do so.  Be that as it may, the skid mark point taken on this application was, for reasons to which we shall next turn, an unattractive point to take but, putting aside the history of the point, it has no merit.

58.  It will be remembered that an officer was tendered for cross-examination and counsel then acting for the applicant, Mr Haynes, adduced from the officer’s evidence that he had seen a skid mark 14.5 m in length in the middle of the road.

59.  In the light of the question thus posed and the answer given, counsel for the prosecution made an application to the judge to call an expert from the forensic science division of the Government laboratory who had examined the tyre marks found at the scene, including the mark of 14.5 m.  Mr Haynes objected on the basis that although the statement of the expert had been served in the unused material, he “hasn’t been on the witness list at any time”.  Mr Haynes said that he did not want prosecuting counsel, whilst making the application, “to mention in any way the conclusions of that person.”  The judge wondered aloud where the evidence would take anybody because, as he said:

“… you see, the difficulty here is how do we know what caused – which vehicle caused this skid mark?”,

to which prosecuting counsel said that the expert could assist in that regard.  

60.  Mr Haynes pressed his objection saying that it was all too late; and that the officer had indicated a skid mark measuring 14.5 m somewhere in the general vicinity of this accident “as Your Honour knows, not attributable to any particular vehicle.”  Mr Haynes went on to say that the defence were “not in a position to prove whose skid mark it was – all I did was to bring to the court’s attention through [the officer’s] evidence … that he had noted a skid mark of 14.5 m.  So there really isn’t here, in my submission, any justification for allowing a last-minute expert to try to give opinions about this for the obvious reasons that the possible need to explain away, if that’s what it does, this skid mark was apparent from the witness statement made in December 2008 and to try and as it were recover the position via a statement made in 2010 and served only a week ago is not a proper approach.”

61.  The court eventually said that:

“There was some evidence indicating from [the officer] that he found in the middle lane a skid mark of 14.5 m in length. There is no evidence as to whether this skid mark comes from; which car, which vehicle it came from, whether or not in fact it was in existence prior to the time this particular accident.”

Mr Haynes answered: “Yes”.

There was no evidence about it at all, repeated the court: it was not even reproduced in the plan which had been drawn and the court then said:

“I am refusing your application. This is a complete waste of time and possibly, even if it is referred to by the defence, possibly a red herring in any event.”

Mr Haynes seemed to agree.  “Yes,” he immediately said.

62.  Nothing was said by counsel for the defence in his closing submissions praying in aid the skid mark evidence.

63.  It is against that history, which we have deliberately traversed in detail, that Mr Grossman pursued the proposition that the skid mark evidence was inferentially of possible benefit to the applicant, and that the judge failed to take into account.

64.  The judge did not fail to take it into account.  We have seen plainly from the transcript what he thought of it and why.  There was no need for him to repeat his reasoning in the Reasons for Verdict.  In any event, he was perfectly correct in his approach: the skid mark evidence was of no avail to either party.  In the light of the evidence as a whole, the judge would have been utilising evidence in a fanciful way had he given the skid mark evidence any weight at all; either way.  We were surprised that the point was pursued.

65.  The fifth and final ground of appeal in relation to conviction relates to the evidence of alcohol consumption and the judge’s finding that the applicant’s ability to drive was, by reason of the alcohol which he had consumed, impaired.  It was said that, in coming to this finding, the judge failed to address the following necessary elements of the charge before finding the applicant guilty thereof:

“(a) whether, on any evidence, the applicant's driving was in fact affected to the extent that it falls within the meaning of ‘dangerous’ under s. 36(4) of [the Ordinance]; AND

(b) whether, on any evidence, the applicant’s driving, if so falls within the definition of ‘dangerous’, caused the fatal accident:

bearing in mind that “the judge was unable to find whether a fatal accident happened as the applicant was tailgating taxi in front at speed or was driving further away behind it but catching up and the fact that the applicant was unable to avoid the deceased had been considered out of proper context, i.e. without any regard to the presence of the taxi in front.”

66.  In the written submissions, it was suggested that despite the expert evidence “there was no possible way of applying [the expert’s] general proposition to the specific circumstances of the case and the judge erred in making the assumption that all drivers in all circumstances would behave, react and be affected in exactly the same way.”  The oral submissions echoed this line, though perhaps with less enthusiasm than advanced in writing.

67.  Each case must be examined in the light of its own facts.  On the clear facts of this case, the proposition put to us was divorced from reality and common sense.  Judges as well as juries are expected to act in accordance with common sense and that is what the judge did.  In R v Millington [1996] RTR 80, a case of causing death when under the influence of drink, where no expert evidence was called as to the effect of 64 micrograms of alcohol per 100 millitres of breath, and the appellant having admitted consumption of a considerable quantity of alcohol, the suggestion was made by counsel on his behalf that there had been no evidence that the appellant was adversely affected by drink or that the amount of drink taken by him was such as would adversely affect a driver and that therefore the jury had been left to speculate.  The Court of Appeal of England and Wales said, as to that, that :

“We cannot agree. The appellant was within some 18% of having a breath test reading twice the legal limit for driving. He had been in a public house for some two hours, consuming, on his own admission six vodkas and 2 pints of beer. What evidence did the jury need in order to make an assessment of the likely effect upon the driver of so much alcohol? No doubt expert evidence could have been given. But is this court to hold that a jury is not capable of assessing for itself, as a matter of common sense and general experience, the likely effect upon a driver of consuming alcohol to that extent?"

68.  Unlike the case of Millington, there was expert evidence in this case and no evidence to suggest that the applicant had some special quality that took him outside the full range of alcohol consumer addressed by the expert.  The uncontradicted evidence was that at the time of driving, the alcohol content in the applicant’s breath and blood was no less than three times the permitted level.  Alcohol was detected on his breath by the sole witness to the accident.  His behaviour after the accident was unorthodox, to say the least.  He himself told the police that he had been seriously confused.  He himself admitted in his cautioned interview that after the collision he was still a bit drunk.  The judge was satisfied that even if the applicant was a habitual drinker – and there was no suggestion that he was – his driving performance must have been impaired.  It was therefore idle to suggest that in this case there was an insufficient basis upon which the judge could properly come to the conclusion that the amount of alcohol in the applicant’s body at the time of the accident had adversely affected his ability to drive.  In any event, the alcohol content was not the only basis upon which the finding of dangerous driving was made: it was one of the two facts which drove the judge to his conclusion.  The point was palpably unmeritorious and we feel constrained to say that if points like this are taken upon criminal appeals, it should come as no surprise if they are rejected and roundly so.

69.  As for causation, we recognise that the conduct of the deceased before the accident was obviously unusual, careless and risky.  By the same token, it is obvious that the applicant’s conduct was dangerous and that that dangerous conduct was a significant cause of the collision which resulted in the death of Mr Leswing.

70.  It is possible in the light of a plethora of complaints for sight to be lost of the wood for the trees.  An examination of the test posed by s. 36(4) of the Ordinance assists in bringing one back to the realities of this case and to the key questions.  

71.  In deciding what would be expected of a competent and careful driver in this case, whether the applicant’s driving fell far below that, and whether that would be obvious to a competent and careful driver, one has regard to the fact that the road was dry at the material time, the amount of traffic was particularly light, the applicant was in no physical condition to drive and could be expected to have been aware of that fact, was driving at a very high speed and failed to avoid what six or seven other vehicles had been seen to avoid, namely, the pedestrian in the road.  No evidence was adduced by the applicant in his defence.  The exculpatory assertions made by him to the police were unsupported by any testimony at trial and could hardly carry any weight – even putting aside entirely the drunk condition in which the applicant had been at the time of the accident; his conduct in sending his passenger away; his conduct in not caring for the welfare of the man lying by the side of the road; and the vagueness of the answers which he did provide.  In these circumstances, there was no basis upon which to doubt the soundness of the conviction in relation to Charge 1.

72.  Accordingly, the application for leave to appeal against conviction was dismissed.

Sentence

73.  At the date of the offence the applicant was aged almost 34 years. He was a person of previous good character although his record of driving offences is a matter to which we must later return.  He is married and has a young child.  He had a university education abroad and was gainfully employed at the time of the offence.

74.  The judge had the benefit of a report by a probation officer, a significant number of personal letters in the applicant’s support as well as a psychiatric report which suggested that at and before the time of the offence, he suffered depression.  It was interesting to note that that report refers to the applicant as an occasional drinker who “invariably controls his amount of drinking.”  This evidence emerged only in mitigation, of course, so was not relevant to the judge’s assessment, for the purpose of determining guilt of Charge 1, of how well able the applicant was to withstand the level of alcohol in his body at the time of the accident.

75.  The maximum term of imprisonment for this offence at the date of its commission was 10 years.

76.  The judge acknowledged that the applicant was a hard-working, decent young man with the support of family, friends and work colleagues who all spoke highly of him.  The events of the night in question proved not only a tragedy for the applicant but also a tragedy for the victim and his family who, said the judge, “must be utterly devastated to have lost such a young son in these tragic circumstances.  These courts must never lose sight of the impact of such an offence on the family of the deceased.”

77.  The judge said that:

“On any view, the standard of your driving that particular fatal morning was extremely bad. I repeat what I said in my reasons for verdict, that it was the combination of excessive speed and intoxication on your part that made your driving utterly dangerous at the material time. I did in fact from your record of previous traffic convictions that you have a predilection for speeding, having three previous convictions for this offence, one of which involved you driving in excess of the speed limit by more than 45 km an hour.

With regard to your alcohol level, I do not accept your assertion that you only had three or four glasses of red wine that night.  In my view, that would not put you at three times over the legal limit.  I cannot speculate as to precisely how much you had drunk, but I emphasise that I sentence you only on the basis that you had 66 micrograms of alcohol in 100 millilitres of breath.”

78.  The judge noted that the alcohol content was three times over the legal limit and he regarded this factor as clearly an aggravating feature.  He then said that a further aggravating feature was the response of the applicant to Mr Siu’s insistence that the applicant should make a report to the police, that the report should not be made “just yet”.  The judge concluded that the applicant was aware that he was still drunk, admitted as much to the police and the judge had no doubt that the applicant wanted to delay the arrival of the police in order to allow himself to sober up.

79.  In relation to the first charge, the judge adopted the starting point of three years’ imprisonment; and, because of the aggravating features which he had identified, he enhanced that to one of 3½ years’ imprisonment and that is the sentence he imposed on Charge 1.  He disqualified the applicant from holding or obtaining a driving licence for a period of three years and that was ordered to run concurrently with the 12-month disqualification in relation to the offence covered by Charge 3.

80.  We have before us the record of the applicant’s previous driving convictions, to which the judge, in part at least, alluded.  Between October 2001 and 10 November 2008 the applicant was convicted of traffic offences on no fewer than seven occasions; three were for driving in excess of the speed limit, on one occasion by more than 45 km per hour; one was for using a mobile telephone while his vehicle was in motion; and another for crossing continuous double lines in a tunnel.

81.  The gravamen of Mr Grossman’s submissions in relation to sentence was to the effect that the matters in suggested aggravation, particularly the question of why there was a delay in reporting the matter to the police, did not warrant six months extra, and that the sentence should be reduced to one of three years’ imprisonment.

82.  There can be no question but that the judge was correct in aggravating the sentence which otherwise would have been warranted, by reason of the grossly excessive amount of alcohol in the applicant’s body at the time of his driving.

83.  The contention in relation to the delay in reporting the matter to the police is put on the basis that the judge was not justified in drawing the single inference that the delay was occasioned by a desire on the part of the applicant to sober up before the police arrived.  What we were taken to in this regard was the psychiatrist’s report which says that the applicant was severely depressed at the material time; the suggestion being that it was or might well have been a state of depression that caused him to act as he did in not calling the police.  This is not a contention that was advanced on his behalf by meticulous and conscientious counsel in the court below.

84.  The delay in calling the police was deliberate.  “Not yet,” insisted this applicant whilst the pedestrian whom he had knocked over was lying on the roadside nearby.  The applicant had sufficient wits about him to instruct, and was not so depressed as to prevent him from instructing his passenger to leave the scene – an unappealing feature of the applicant’s conduct not mentioned by the judge as an aggravating factor – and making a number of telephone calls to parties who might assist him, including his solicitor.  The inference which the judge drew was the obvious one to draw.

85.  There was a submission in the written grounds in relation to sentence to the effect that on the basis that the applicant was driving dangerously by being too close behind the taxi this was a case at the very most “of a momentary lapse of attention and error of judgment” to which fact the judge paid no or insufficient attention.

86.  Unrealistic submissions of this kind, suggesting that somebody who was driving at high speed with three times the permitted level of alcohol in his body was guilty of at the very most a momentary error of judgment, are of little assistance to the court or, for that matter, to an applicant.  The judge correctly categorised the nature of the driving as “extremely bad” and “utterly dangerous”; and so it was.

87.  Then it was said in the adopted written arguments that “there was evidentially no causal link … between the applicant’s drinking alcohol beforehand and the collision that followed.”  No more needs to be said than that the suggestion was bereft of connection with the facts of the case with which this Court is concerned.

88.  Counsel next put forward the contention that the judge failed to have regard to the fact that there was “a very high degree of contributory negligence by the deceased.”  The judge did have regard to it.  He commenced his sentencing remarks by reciting the fact that the pedestrian was standing in the middle of the road, a fact, said the judge, “which of itself is highly dangerous.” We agree that the case is different from one in which a drunken speeding driver veers off the road and kills a pedestrian or pedestrians on the pavement, and then, as did this applicant, tells his passenger to leave the scene and fails to call assistance, despite an invitation to seek it.  But such a case would warrant a sentence much higher than the one imposed in this case.  Whilst the conduct of the deceased was, as the judge remarked, itself dangerous, so was that of the applicant and the applicant’s conduct was a significant cause of the accident and the death of Mr Leswing.

89.  The judge made no error in his approach to sentence in this case, for the full circumstances of which he had, having heard evidence for several days, a good feel and there is no basis on which to say that the sentence on Charge 1 was either wrong in principle or manifestly excessive.  Accordingly, the application of leave to appeal against sentence was dismissed.

90.  Mr Wong, for the respondent, suggested that this Court should extend the period of disqualification since it has authoritatively been stated that disqualification is a forward-looking and preventative measure and should have an actual effect, whereas there is no such effect if the disqualification ends before or at the same time as the offender’s release: see Secretary for Justice v. Hung Ling Kwok, CAAR 7/2009.  Factors to take into account include not merely the culpability attaching to the driving in question, but also, where “the circumstances of the offence and the offender’s record [show] that the offender tends to disregard the rules of the road or drives carelessly or inappropriately.”: R v Cooksley [2003] 3 All ER 40 para. 42.

91.  We examined the applicant’s driving record, the most serious of which offence, the manifestly excessive speeding in 2001, was some years ago.  We noted too the serious nature of the present offence and have taken into account as well the fact that prior to trial the applicant wrote to the Commissioner of Police that he was surrendering his licence, intending never to drive again, although the licence itself was not in fact surrendered until after conviction. We were at one stage minded to accede to the respondent’s invitation to increase the period of disqualification and we are satisfied that there could have been no justifiable complaint had the disqualification been longer.  Nonetheless, the judge lived with this case and, as his reasoning evidences, he had a sound feel for it and we did not in the circumstances of this case think it warranted to interfere with the disqualification period which he imposed.